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INDEPENDENCE OF CUBA. 



^REMARKS 



OF 



HON. JOSEPH L RAWLINS, 



OF UTAH, 



IN THE 



SENATE OF THE UNITED STATES, 



MONDAY, APRIL 18, 1898. 



WASHINGTON. 

1S98. 






\18^ 






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Digitized by the Internet Archive 
in 2011 with funding from 
The Library of Congress 



. 



http://www.archive.org/details/independenceofcuOOrawl 






REMARKS 

OF 

HON. JOSEPH L. RAWLINS. 



INDEPENDENCE OF CUBA. 

Mr. RAWLINS. Mr. President, the pivotal question in the ex- 
isting situation in our relations with Spain and Cuba seems to be 
involved in the claim made that the power and right to decide 
the question of national independence rest exclusively with the 
President of the United States, and that no such power exists ill 
the conjoint action of the President, the Senate, and the House of 
Representatives, or that, if by such joint action national inde- 
pendence may be recognized, it is a power which ought not now 
to be exercised. 

As I may at this time without taxing the patience of the coun- 
try or delaying action which may be regarded as urgent, I desire 
to discuss that question in the light of the provisions of the Con- 
stitution of the United States. 

Mr. President, the power to recognize national independence is 
not conferred in express terms either upon the President or upon 
any other department of the Government. It necessarily, there- 
fore, exists as an incidental or implied authority. It is claimed to 
exist iri the President as an incident to his power to make treaties. 

The power to make treaties is expressly vested by the Constitu- 
tion in the Executive, " to be exercised bj r and with the advice and 
consent of the Senate," two-thirds of the Senate concurring. The 
Supreme Court of the United States has denned a treaty in the 
case of Edye vs. Robertson, reported in 112 United States Reports, 
where this subject was under consideration and the opinion was 
rendered by that eminent jurist, Mr. Justice Miller. On page 598 
he says: 

A treaty is primaril y a compact between independent nations. It depends 
for the enforcement of its provisions on the interest and the honor of the 
governments which are parties to it. 

32-19 3 



As a treaty is a compact between independent nations, when- 
ever it is proposed to enter into a treaty the question necessarily 
arises as to whether the party proposing to become bound by it 
is an independent nation. The President, therefore, before he en- 
ters into the consideration of the subject-matter of a treaty nec- 
essarily must make inquiries as to whether the other party is a 
national sovereignty and has an independent existence. 

So, whenever such question is presented to the President as in- 
cidental to the exercise of the treaty-making power, the President 
must determine that question of national independence, which 
involves the competency of the party proposing to enter into the 
contract; but when he has decided that question and enters into 
the treaty, it must be submitted to the Senate for its concurrence, 
as provided in the Constitution. The Senate of the United States 
must necessarily pass in review all the elements which are pri- 
marily to be considered by the Executive whenever the making 
of a treaty is involved, and among those elements is the question 
as to the competency of one of the parties to the contract. 

The Senate must, therefore, make inquiry, in the exercise of its 
undoubted authority as an incident to its power to advise the 
President in respect to the making of a treaty, whether the oppo- 
site party is an independent nation competent to enter into the 
contract. 

Mr. President, the Senate may differ with the President in his 
determination that the party proposing the treaty is an independ- 
ent nation. It may decide that it is not possessed of national 
sovereignty, and upon that ground may refuse to concur in the 
treaty which has been sent to it by the President. Therefore, the 
Senate, in the exercise of that incidental authority, may decide for 
or may decide against national independence, notwithstanding the 
President himself has previously passed upon that question, because 
if the Senate decides that the party proposing the treaty is not an 
independent nation and not competent to make a contract, or to 
comply with its provisions if made, it is the end of controversy, 
and the decision first made by the President is overruled in effect 
by the power in whom the Constitution has vested the authority 
to concur or -refuse to concur in a treaty. 

Mr. President, suppose the President has decided in favor of 
3219 



national independence and the Senate has concurred in that deci- 
sion by ratifying or confirming the treaty. Is that final? Is that a 
conclusive determination of the question of national independence 
which is thus exercised as an implied or incidental authority? I 
v/ill endeavor to show that it is not conclusive; that there is an- 
other authority provided by the Constitution competent to review 
this action and this determination both of the Executive and of tho 
Senate, and which may overrule that determination decisively 
and finally. That such is the case is no longer the subject of con- 
troversy or dispute if we are to follow the decisions of the highest 
tribunal in this nation. 

The Supreme Court, in the case to which I have just referred, 
after setting forth that a treaty is primarily a compact between 
independent nations, decided that whenever this Government en- 
ters into such a compact, it necessarily recognizes the independent 
existence of the other party to the contract; but the Congress of 
the United States, by the conjoint action of the President, of the 
Senate, and of the House of Representatives, may modify or repeal 
that treaty; may wipe it out of existence by revocation; and when 
it is so repealed or revoked, it falls to the ground with all its im- 
plications, including that of the recognition of the competence of 
one of the parties to the contract, namely, its national independ- 
ence. 

The Supreme Court of the United States has in a number of 
cases decided that the treaty may be modified or may be revoked 
by the action of Congress. This question directly arose in the 
case to which I have referred, where Mr. Justice Miller used this 
language: 

We are of the opinion that, so far as the provisions in that act may be found 
to be in conflict with any treaty with a foreign nation, they must prevail in 
all the judicial courts of this country. We had supposed that the question 
here raised was set at rest in this court by the decision in the case of The 
Cherokee Tobacco, 11 Wali. , 616. 

Further on the court say: 

The precise question involved here, namely, a supposed conflict between 
an act of Congress imposing a customs duty and a treaty with Russia on 
that subject, in force when the act was passed, came before the circuit court 
for the district of Massachusetts in 1885. 

After referring to that decision, which held that the act of Con- 
gress necessarily repealed pro tanto the treaty made by the Execu- 

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6 

tive with the concurrence of the Senate, the court proceeds to 
decide in this case that this power of Congress is unquestioned. 
But I read further as bearing upon this same question, and the 
reasoning herein employed, it seems to me, is decisive of this en- 
tire question: 

A treaty is made by the President and the Senate. Statutes are made by 
the President, the Senate, and the House of Representatives. The addition 
of the latter body to the other two in making a law certainly does not render 
it less entitled to respect in the matter of its repeal or modification than a 
treaty made by the other two. If there be any difference in this regard, it 
would seem to be in favor of an act in which all three of the bodies partici- 
pate. And such is, in fact, the case in a declaration of war, which must be 
made by Congress, and which, when made, usually suspends or destroys ex- 
isting treaties between the nations thus at war. 

In short, we are of the opinion that, so far as a treaty made by the United 
States with any foreign nation can become the subject of judicial cognizance 
in the courts of this country, it is subject to such acts as Congress may pass 
for its enforcement, modification, or repeal. 

It must follow, therefore, that in so far as the President and 
Senate have incidental authority to recognize national independ- 
ence in the exercise of the treaty-making power, which is ex- 
pressly conferred by the Constitution, such recognition may be 
wiped out and obliterated by the conjoint action of the President 
and the Senate and the House of Representatives in the exercise 
of legislative authority. It must follow, then, clearly, that in 
so far as the President is claimed to have authority to recog- 
nize the independence of a nation in the exercise of this treaty- 
making power his decision of that question is subject to review, 
first, by the Senate, which may nonconcur, which renders inef- 
fectual his recognition; but if the Senate concur, there is still 
another ultimate tribunal by whom the question may be decided, 
namely, the Congress of the United States; and the language of 
the Supreme Court is not inapt when it says: 

If there be any difference in this regard, it would seem to be in favor of 
an act in which all three of the bodies participate. 

Next, it is claimed, as I understand the argument of those op- 
posed to the view of the question which has been entertained by 
the majority of the Senate, that the President has the authority 
to recognize national independence as an incident to his authority 
to receive foreign ambassadors or diplomatic representatives. 

Mr. President, the power to receive ambassadors, as already 

pointed out, is not conferred upon the President in express terms 
3249 



anywhere in the Constitution. The Constitution in defining the 
jurisdiction of the courts makes reference to ambassadors. la 
the controversies relating to ambassadors, the Supreme Court or 
the United States is vested with original jurisdiction; and when a 
case comes up, and any question of ambassadorship arises in the 
court, the question as to whether the party claiming any privi- 
lege or right in virtue of that character which must be decided' 
Is the individual a foreign ambassador? The determination or 
that question is necessary in order to decide, first, whether the 
Supreme Court of the United States has original jurisdiction of 
the controversy. It may be necessary to decide it in order to de- 
termine whether the person is entitled to the privilege which pes> 
tains only to a foreign ambassador. 

How is the court to decide that question? The Constitution has 
made no provision as to how it shall be determined. We can, 
therefore, not look to any express provision in order to determine 
that question. Who is to decide that fact? Mutuality and reci- 
procity are essential to the exercise of the power both to send and 
receive ambassadors. If some foreign government should send a 
diplomatic representative to the United States, and he should ad- 
dress himself to the President, undoubtedly the power of the 
President informally to receive him would be unquestioned, as he 
may receive any individual, irrespective of the official character of 
that individual. 

Naturally, as has been frequently suggested, the President will, 
in the first instance, pass upon the question as to whether any par- 
ticular individual presenting credentials from an alleged independ- 
ent nation is entitled to be received; and in passing upon the ques- 
tion as to whether he shall be extended that official courtesy the 
President would undoubtedly be called upon to pass upon the ques- 
tion as to whether the authority undertaking to accredit him was 
jiossessed of national independence or sovereignty. 

I readily concede, Mr. President, that here incidentally the Pres- 
ident is called upon to determine whether or not national independ- 
ence exists in respect of the power undertaking to accredit an 
ambassador to the United States, but the important question is 
whether his determination in such a case as that is final and con- 
clusive and binding upon all the other departments of the Gov- 

3240 



ernzxxent, or binding upon him in his future action in respect to 
that G overnment. 

A few considerations, it seems to me, will make it perfectly 
clear and conclusive that where the President thus incidentally 
passes upon the question as to whether a given power is an inde- 
pendent nation is not conclusive, because, before we can have 
complete relations with any foreign government, we must not 
only receive, but we must undertake to send diplomatic represent- 
atives from this Government to represent it in the matters per- 
taining to the power which it is proposed to recognize. It is a 
reciprocal duty. To receive the representative of a foreign govern- 
ment and to refuse to send one is an anomaly in the affairs of 
nations. The President undoubtedly, in the first instance, may 
receive, but he has no power to send a representative. He can 
not create the office of ambassador, he can not provide his salary, 
he can not determine his grade, unless some express authority be 
conferred upon him to that effect by the Congress of the United 
States. 

Unquestionably the power is vested in Congress to determine 
whether or not we will send any representatives and what the 
grade and pay of its representatives shall be, and when Congress 
has so acted, the President, under his oath, in the execution of the 
power vested in him by the Constitution, must recognize that 
action of Congress as his exclusive guide in such matters. Then, 
although the President may incidentally determine that the nation 
is in existence to the extent necessary to enable him to extend the 
official courtesy of receiving its representatives, he has no power 
to determine as to whether the foreign relations with that govern- 
ment shall be made complete by the sending of a representative 
from this country. 

Hence we find in this case that, while the President may be 
called upon to act, and may properly act, his action is subject to 
review by the Congress of the United States, by the conjoint 
action of the President, the representatives of the States, and the 
representatives of the people in the two branches of Congress, 
and the united action, the conjoint consent and direction, of these 
three departments of our Government, so to speak, are of far more 
efficacy and power than the determination of the President inci- 

8349 



9 

dentally in undertaking to receive a diplomatic representative 
from abroad. 

The Congress may overrule the action of the President and wipo 
it out, and not only that, but I nest call attention to a power vested 
in Congress whose exercise may be destructive absolutely of 
diplomatic relations with foreign governments, and which can 
not by any possibility be questioned. The power to declare war 
is vested exclusively in the Congress of the United States, and 
the moment such a declaration is made by Congress the Presi- 
dent has no authority to receive any diplomatic representative 
from the power or nation against whom the declaration of war is 
made. The language which is employed by the Supreme Court 
of the United States in direct application to the power of Congress 
in respect to treaties is equally applicable to the question of the 
exercise of the power of the President to receive ambassadors from 
foreign governments. This language is used: 

Such is, in fact, the case in a declaration of war, which must be made by 
Congress and which, when made, usually suspends or destroys existing trea- 
ties between the nations thus at war. 

Usually, I believe universally, the diplomatic relations existing 
between the nations thus at war are destroyed by a declaration of 
war, and though the President may have decided to receive an 
ambassador from some foreign country, that power is wiped 
away. Although the President in the first instance has that 
power, Congress can take away that power by a simple declara- 
tion of war. It can wipe it out absolutely and eternally, and what 
it can do thus completely it can do in part if it see proper to do it. 

Therefore the two grounds upon which it is claimed that the 
President of the United States alone can recognize the national 
independence of another power, government, or people and that 
such determination is finally conclusive, as it is claimed to relate 
to the power to make treaties, are destroyed, because the Supreme 
Court of the nation has decided that Congress may revoke, repeal, 
or wipe out treaties as it sees proper; and as to the power claimed 
to exist in the President by virtue of his right to receive foreign 
ambassadors, Congress can take away effectually that power. 
There is no ground, no foundation anywhere to be found in the 
Constitution, either in express authority or implied authority, by 
3249 



10 

■which it can be successfully maintained that the President has the 
exclusive authority finally to determine the question of national 
existence. 

Mr. President, it would seem to follow that, while the President 
has incidental authority in certain cases to recognize the inde- 
pendence of foreign governments, in the case of treaties his de- 
termination of it may be reviewed and overruled by the Senate of 
the United States. Where it is determined both by the President 
and the Senate, it may be overruled by the action of the Congress 
of the United States, composed of the President, Senate, and House. 
It also follows that, while the President incidentally may decide 
that a given government is a national sovereignty, in order that 
he may receive its accredited representatives, that may be re- 
viewed and overthrown by the action of the Congress of the 
United States, and no provision of the Constitution and no other 
authority has been pointed out to which the authority of the 
President to recognize national independence can be claimed as an 
incident. It must follow that no such exclusive power exists in 
the President, and that in every case it is subject to be reviewed 
and overthrown by the conjoint action of the President, the Sen- 
ate, and the House of Representatives. 

Having come to the conclusion, therefore, that this is a power 
which rests finally for the determination of the Congress of the 
United States whose action must receive the concurrence of the 
President in the method provided in the Constitution, so that 
in that case we have the conjoint action of the three depart- 
ments passing upon the question, the next question which arises 
is whether under the existing circumstances in the present situ- 
ation the Congress of the United States ought to recognize the 
independence of the Republic of Cuba. 

In this connection, before proceeding to the discussion of the 

question of expediency, I desire to allude for a moment to a claim 

made by the distinguished and learned Senator from Alabama 

[Mr. Morgan] . It had been asserted that France recognized the 

independence of the colonies when the situation in regard to actual 

independence, national sovereignty, and ability to carry into 

effect provisions of treaties and perform international duties and 

obligations was less tenable than that which pertains to the Re- 
a;M9 



11 

public of Cuba. I understood the Senator from Alabama to deny 
that any such recognition had taken place, and he read from a 
treaty entered into between France and the colonies, whereby it 
was provided that neither should enter into any agreement for 
a cessation of hostilities with Great Britain without the consent 
of the other. "When the Senator, as it seems to me, read from 
that treaty, he overthrew the very proposition which I understood 
him to seek to maintain; because when that treaty was made with 
France, France necessarily determined and decided that the other 
party to the treaty or contract was an independent nation. I read 
from the definitions as given by Mr. Justice Miller as to what a 
treaty is. He says: 

A treaty is a contract between independent nations. 

And that is necessarily true. Hence, when France entered into 
a treaty with the colonies she entered into a compact or contract 
with an independent nation. When she entered into a contract 
with that independent nation, she recognized the existence of the 
colonies as an independent nation, a people occupying an equal 
station, possessed of sovereignty among the nations of the world. 
It is a shining example and an apt illustration of the duty of the 
people of the United States in relation to the Republic of Cuba. 

Is it wise or is it expedient for Congress to recognize the inde- 
pendence of the Republic of Cuba? In the course of the very ablg 
discussion of the different phases of this question during the last 
week some Senator deprecated with great earnestness that any- 
one in this body, that any member of either branch of Congress, 
should lack confidence in the President of the United States. If 
we had good reason to believe at this time that the President of 
the United States was in fact favorable to the independence of tha 
Republic of Cuba, I for one would be disposed to leave the ques- 
tion of recognition of that independence to his determination, 
having full confidence that such recognition would take place 
within such time as would prevent any evil consequences arising 
which have been depicted as likely to result from a failure to rec- 
ognize the independence of the island or its emancipation from 
the authority of Spain. 

The President of the United States in all his representations to 
the Kingdom of Spain has never caused any suggestion to be made 

32i9 



12 

to that Government in favor of the absolute and complete inde- 
pendence of the Island of Cuba. In the two communications 
which he has made to the Congress of the United States relating to 
that subject we do not find any suggestion, any recommendation, to 
the Congress of the United States that the ultimate end in this 
case is the establishment of the independence of the Island of Cuba 
and its emancipation from Spanish authority. It is not a question 
of lack of confidence in the Executive. 

There are Senators upon this floor with whom I differ in respect 
to questions of public policy in whom I have the utmost confi- 
dence, but for the reason that I am compelled to differ with those 
Senators in respect to some matter of public policy I must, so far 
as I am able, bring their purposes to naught. Every man who be- 
lieves that the people of Cuba, who have during the past three 
years struggled to establish their independence and emancipate 
themselves from the tyranny of Spain, have established it, will 
do and must do, if he is true to his convictions, do legitimately, 
whatever he thinks is necessary in order to bring about that re- 
sult. 

If we find ourselves upon that question in opposition to the ex- 
pressed desires of the President of the United States, and if we 
seek to bring to naught the purpose which he seems to have in 
view, which does not mean the complete independence of that 
island, it is not because we lack confidence in the personal integ- 
rity and honesty of the President, but it is because we believe in 
a policy and a purpose which essentially, and maybe radically, 
differs from that which he maintains ; and if we would be true to 
our convictions, we must seek to defeat the purposes and policy of 
the President. 

It is not necessary that we distrust the President. If I have 
read the purpose of the President as expressed in his message, if I 
may judge of it by his previous conduct in relation to this ques- 
tion, if we are to judge as to what may take place in the future 
by what has taken place in the past, we necessarily come to the 
conclusion that the end which the President seeks is peace in the 
Island of Cuba and some kind of stable government there, per- 
haps an autonomous government in which the sovereignty of 

Spain over the island remains, but in which there is tranquillity, 
32i9 



13 

in which we may proceed in peace to carry on our international 
commerce and perform our international relations and duties 
without the incidental disturbance and outrages which the con- 
duct in respect to that island has entailed in the times which have 
passed. But that does not reach the end which, in my judgment, 
is desired by the American people. It is not the purpose enter- 
tained by a vast majority of the members of the Senate, and I do 
not believe it is entertained elsewhere. Our duty, then, in this 
emergency is, if we can, to carry into effect the purposes which a 
majority of the Senate entertains upon this question. 

Mr. President, suppose we content ourselves with the direction 
to the President to intervene in the affairs of Cuba. Suppose we 
declare in connection with that that the people of Cuba ought to 
be a free and independent nation. Suppose we authorize and 
direct the President of the United States to employ the Army and 
Navy for the purpose of bringing about some result which we do 
not plainly and unequivocally declare in the resolution which we 
enact. We turn over to the Executive the Army and the Navy of 
the United States to be employed at his discretion. 

We have confidence in the President. Judging by the past, we 
have reason to believe what his action is likely to be in the future. 
What will he do? It is not a question of personal integrity. It 
is not a question of Americanism. It is not a question of the 
respect which every citizen of the United States owes to the Chief 
Magistrate of the nation. What will he do with the Army and 
the Navy? To what end will he employ it? is the question which 
concerns the American people and the American Congress. 

We should all be delighted if we had an explicit and direct as- 
surance of the President that he would employ the Army and 
Navy decisively for the purpose of giving complete independence 
to the people of Cuba, but the misfortune of the situation is that 
the President has in no way intimated, either in terms or by act 
or conduct, that he would drive the Spaniards away from Cuba 
and leave the people of that island in a complete state of emanci- 
pation. 

The Senator from Delaware [Mr. Gray] held up his hand and 

with great earnestness and eloquence declared that he was not a 

partisan in respect to this question, but was an American, and I 
3219 



14 

doubt not that the sentiment which he thus expressed is enter- 
tained perhaps by every member of the Senate. I agree with him 
fully when he declares that the question of national honor, the 
question of safety, the question of freedom, the question of public 
policy as it relates to that moral control which this Government 
has sought to maintain of affairs upon this continent rises far 
above partisan consideration. The sentiment which he thus ex- 
pressed, while advocating the view that Congress ought to yield 
to the suggestions of the President on this occasion, is entertained, 
I believe, by everyone who entertains the opposite view and thinks 
that in order that the purpose which the majority of the Senate has 
in view may be carried into effect we are unable to conform to the 
suggestions of the President. 

The difference between the Executive and the people and the 
Senate is not one of inexpediency. It is not a mere question of 
administration. 

The President in his communication to the Senate has claimed 
not only that the Republic of Cuba ought not to be recognized, 
but the supporters of the President here have informed us that 
his contention is that he alone may exercise the power to deter- 
mine whether any nation is independent or otherwise, and that 
his determination is final and exclusive— that there is no authority 
in this Government to pass in review and modify or repeal the 
determination which he thus makes. 

In connection with that claim on his part it is also claimed that 
the conditions in Cuba are not such as to warrant any recognition 
of the organized government existing there and which has had 
control of the operations against Spain. If those conditions do 
not now exist there, I ask is there any reasonable probability that 
in the future any change in the condition is likely to take place 
which will convince the President, in the exercise of what he 
claims is his exclusive province and authority, that there should 
be a recognition of the independence of the people upon that 
island? 

I will never consent by any vote which I shall cast to concede 
to the President of the United States that he can determine finally 
and without review by Congress whether any nation is free or 

3249 



15 

independent or otherwise. See what that involves. The Presi- 
dent of the United States might decide that Japan is not an inde- 
pendent nation; he might refuse to receive diplomatic representa- 
tives from that Government; he might undertake to intercept 
supplies sought to be delivered to that Government on the ground 
that it was under subjection to some other foreign government, 
such as Russia or Great Britain or some other power, as a mero 
dependency and not as an independent sovereignty. 

The rights and duties of neutrality necessarily depend upon na- 
tional sovereignty and national existence. It is only necessary to 
proceed further in order to see that the question of national inde- 
pendence may mean peace or war. 

To abdicate the power which thus belongs to Congress to rec- 
ognize the independence of a nation, to declare war, to prescribe 
the conditions upon which war may be carried on, to do those 
things which may be necessary to wage that war to success— to 
abdicate all this power to the President is too much for the Presi- 
dent to ask and too much for any friend of the President to seek 
upon the mere pretense that every Senator owes it as a duty as a 
patriot to support every recommendation which the President may 
make. 

I think the Senate ought to adhere to the position which it has 
taken and only concur in any action whereby the Republic of Cuba 
may be recognized as a separate and independent nation, that its 
forces may be utilized in conjunction with those of the United 
States, in order that the war which seems now to be impending 
against Spain may be waged to a successful conclusion, in order 
that by the precedent which we now establish in this great and 
critical emergency the question maybe finally and forever settled. 
While the President has incidental authority, primarily, to recog- 
nize national independence in connection with the power to make 
treaties and receive ambassadors, the exercise of that power is 
always subject to revision, modification , or review by the Congress 
of the United States. 

I be'.ieve there never has arisen any duty more important than 
the one which now devolves upon both branches of Congress upon 
this great question. For myself, I am unwilling to surrender it. 
3849 



Ifilill 

015 825 971 , 



16 

I am unwilling to make any concession which implies its surren- 
der. I am unwilling for a moment to concede to the present Exec- 
utive or any other Executive that power which belongs, in my 
judgment, finally to the representatives of the States and of the 
people in the two branches of Congress. It is the power of peace 
or war, that power which is clearly and unequivocally vested 

here and not anywhere else. 
3249 

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